Criminal Litigation

Where the defendant is being tried in his absence but counsel continues to act, he should conduct the case as though his client were still present in court but had decided not to give evidence on the basis of any instruction he had received.

He is free to use any material contained in his brief and may cross-examine prosecution witnesses and call defence witnesses. Counsel is entitled to ask questions of prosecution witnesses in as much detail as he wishes based on his instructions, but without indicating what the defendant’s evidence might have been and in the knowledge that he will not be able to call evidence to contradict the answers given.

He is entitled to conduct cross examination on this basis in the hope of either showing that his absent client’s instructions are accepted by the witnesses or casting doubt upon the coherence or accuracy of their accounts.